An unidentified Tempe police officer discharges pepper spray at protesters who were following his orders to back up. The incident took place at a “Chalk Walk” protest outside Tempe Marketplace on June 27, 2020. Screenshot via Lisa Vu | Instagram
All three of the defendants in a lawsuit filed last month by a coalition of news organizations and civil libertarians say they won’t defend a law set to go into effect later this month that would make it a crime to take video of police officers in some situations.
The plaintiffs in the lawsuit, including the Arizona Mirror, filed a federal lawsuit and a request asking a federal judge to stop the law from being enforced, known as a preliminary injunction.
The new law is scheduled to go into effect Sept. 24, and would outlaw video recording of police officers within eight feet of where “law enforcement activity” is taking place. If a person does not stop after being told to, they could face a class 3 misdemeanor and up to 30 days in jail.
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The lawsuit named Attorney General Mark Brnovich, Maricopa County Attorney Rachel Mitchell and Maricopa County Sheriff Paul Penzone as defendants. The AG’s office is almost always a defendant in litigation challenging state laws, while the Maricopa County officials will be tasked with enforcing the new law.
But Brnovich’s office on Sept. 1 told the court that it will not oppose the preliminary injunction. Beau Roysden, the state’s solicitor general, wrote that the AG “is not the proper party to defend the merits of” the new law.
Roysden wrote that the AG’s Office would notify Rusty Bowers, the speaker of the Arizona House of Representatives, and Karen Fann, the president of the Senate, that local and county prosecutors “are the proper entities to defend this statute.”
However, the next day, the Maricopa County Attorney’s Office said that neither it nor the Sheriff’s Office would defend the law or oppose the motion to block the law from going into effect.
“Neither County Attorney Mitchell nor Sheriff Penzone were involved in the passage of the statute at issue, nor is there any allegation in the complaint indicating that these defendants have enforced or threatened to enforce the challenged statute,” Deputy County Attorney Joseph Vigil wrote.
Although Bowers and Fann were not named as defendants, they could seek to intervene in the case to defend the law. Fann said the Senate was mulling whether to act.
“The executive branch’s role is to enforce and defend the laws passed by the Legislature and signed by the governor. We are currently considering all options and will not comment further on pending lawsuits,” she said through a spokeswoman.
A requests for comment with a spokesman for Bowers was not returned.
The plaintiffs in the legal challenge are the Mirror and States Newsroom; the Arizona Broadcasters Association; the Arizona Newspapers Association; the parent company of Fox 10 Phoenix; the parent company of KTVK 3TV, KPHO CBS 5 News and KOLD News 13; KPNX 12 News; NBCUniversal, which owns Telemundo Arizona; the National Press Photographers Association; Phoenix Newspapers Inc., which owns The Arizona Republic; Scripps Media, which owns ABC15 in Phoenix and KGUN9 in Tucson; and the ACLU of Arizona.
Courts have long ruled that the First Amendment protects not only the publication of videos, but also the act of recording them — particularly videos of public officers in public places.
The U.S. Supreme Court “has consistently recognized a right to gather news, and recording police and other government officials is newsgathering,” attorneys for the news organizations and the ACLU noted in their filings. In a 1972 case, the high court ruled that “freedom of the press could be eviscerated” without First Amendment protections for seeking out the news.
And legislative attorneys warned lawmakers that the restrictions flew in the face of previous court rulings. Still, it was supported by every Republican legislator and signed into law by Gov. Doug Ducey.
***UPDATED: This story has been updated to include a comment from Senate President Karen Fann.
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